On March 25, masked ICE agents descended on a residential neighborhood in Somerville, Massachusetts, and arrested Rümeysa Öztürk, a Turkish graduate student at Tufts University. Öztürk—who likely came to the authorities’ attention because of an op-ed she co-authored in her school newspaper last year—has spent nearly a month jailed in an immigration detention facility in Louisiana while the government pursues her removal from the United States.
Öztürk is one of over a thousand international students caught in a sweeping crackdown by the Trump administration. In late March, Secretary of State Marco Rubio confirmed that he had revoked about 300 visas, including the visas of students like Öztürk deemed “supportive of movements that run counter to the foreign policy of the United States.” Since then, the U.S. State Department has continued to revoke hundreds more visas. And in apparent coordination, ICE has also begun to terminate student visa holders’ records en masse in a federal immigration database. Students affected by these unprecedented developments now face a difficult choice: leave the United States and abandon their studies or stay in the country and risk being forcibly deported.
But standing in the way of the government’s efforts to deport students like Öztürk is a 2012 Supreme Court opinion that sets important constitutional limits on federal agencies’ enforcement powers. In that case, FCC v. Fox Television Stations, the Court held that a bedrock requirement of due process—fair notice—barred the Federal Communications Commission (FCC) from imposing regulatory penalties where the agency had failed to clearly announce the standards that it later sought to enforce. Now, that same logic could shield students like Öztürk from removal.
At first glance, a regulatory dispute involving the FCC and television networks might seem to have little to do with the plight of students facing deportation. But Fox TV stands for the principle that federal agencies cannot penalize those they regulate for violating administrative standards that were unclear or unknown at the time of the conduct at issue. Fox TV’s logic applies with considerable force in cases like Öztürk’s, where federal agencies—the U.S. State Department and/or ICE—are applying what appears to be a new standard to penalize regulated parties—student visa holders—for past conduct.
If anything, the fair notice concerns that animate Fox TV apply with even greater force here for two reasons. First, the Supreme Court has long acknowledged, and recently reaffirmed, that deportation is a particularly severe civil penalty, which the government can impose only when it adheres to the “most exacting” notice requirements. And second, the sanctioned conduct often involves political speech, which falls within the First Amendment’s heartland.
Deportation without Warning
In early March, Axios reported that the U.S. State Department had initiated an “AI-fueled ‘Catch and Revoke’” operation, using social media monitoring to screen tens of thousands of international students. Officials also said that they were checking “news reports of anti-Israel demonstrations and Jewish students’ lawsuits that highlight foreign nationals allegedly engaged in antisemitic activity without consequence.”
These efforts followed two executive orders issued shortly after President Trump took office. The first order directed the secretary of state to “vet and screen” noncitizens already in the United States “to the maximum degree possible.” The second instructed federal agencies to make “recommendations for familiarizing institutions of higher education” with certain removal grounds in the Immigration and Nationality Act (INA) “so that such institutions may monitor for and report activities by alien students and staff[.]”
Several high-profile arrests soon followed. On March 8, ICE agents arrested Mahmoud Khalil, a green-card holder and soon-to-be father, who played a prominent role in campus protests at Columbia University. Since Khalil’s apprehension, the administration has arrested, or threatened to arrest, other students and scholars, including Badar Khan Suri from Georgetown, Yunseo Chung and Mohsen Mahdawi from Columbia, and Momodou Taal from Cornell, who has since left the United States. Lawsuits filed on their behalf allege that they were retaliated against for their political activism.
Other students, like Columbia’s Ranjana Srinivasan, who reportedly fled the country after ICE agents attempted to arrest her in her campus dorm, have expressed bewilderment at becoming the targets of immigration enforcement. Srinivasan disavowed any significant role as a student activist, telling the New York Times, “I’m kind of a rando, like, absolute rando.”
When asked whether the visa revocations were all “related to pro-Palestinian protests,” Rubio explained that “there might be a few . . . that are related to other groups” as well as many that “are unrelated to any protests and are just having to do with potential criminal activity.” He elaborated, “I think about it this way. If we knew this information—my standard; If we knew this information about them before we gave them a visa, would we have allowed them in? And if the answer is no, then we revoke the visa.”
But the administration has not identified any known, pre-existing standard against which these students’ conduct is being assessed. And students are finding their visas revoked or records terminated for lawful protest or online commentary, as well as for minor infractions like traffic violations, which would not have endangered their immigration statuses under prior administrations.
An email that some students received notifying them of their visa revocations provides no additional explanation. The email does, however, inform its recipients that “[r]emaining in the United States without a lawful immigration status can result in fines, detention, and/or deportation.” The email goes on to warn that “[p]ersons being deported may be sent to countries other than their countries of origin,” and encourages recipients to self-deport.
Confusion and fear are now running rampant on college campuses, with students expressing uncertainty about “what is considered freedom of speech and what is considered a threat to the government.” Students are responding by scrubbing or deactivating their social media accounts; some are even refraining from speaking up in class for fear of jeopardizing their immigration status.
As for Öztürk, she remains in government custody after an immigration judge denied her request for release last week. Now, as her removal proceedings continue, a federal district court in Vermont is scheduled to evaluate the constitutionality of her ongoing confinement at a bail hearing scheduled for May 9.
The Fair Notice Imperative
Although details remain hazy, what seems relatively clear is that, in cases like Öztürk’s, the Trump administration is pursuing deportation based on the enforcement of a standard that was formulated long after the relevant conduct occurred. And therein lies the Fox TV problem.
In Fox TV, the FCC sought to penalize two television networks, Fox and ABC, for content they aired before the agency had fully clarified its so-called “fleeting expletives” policy. The FCC had issued guidelines on the topic in 2001 but had not offered important clarification on the policy’s full scope until 2004. Nevertheless, the agency applied its policy to sanction Fox and ABC for expletives and nudity they aired after the 2001 guidelines but before the 2004 clarification.
In a unanimous decision, the Court ruled for the networks. The Court explained that the FCC’s “policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be actionably indecent; yet Fox and ABC were found to be in violation.” FCC’s enforcement against the networks, the Court held, violated “[a] fundamental principle in our legal system” which “is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” That principle, enshrined in the Fifth Amendment’s Due Process Clause, has two rationales: “first, that regulated parties should know what is required of them so they may act accordingly” and “second, . . . so that those enforcing the law do not act in an arbitrary or discriminatory way.”
The Court concluded that the networks could not be penalized for failing to abide by an administrative standard of which they were unaware. Significantly, the Court reached this conclusion despite the underlying statutory scheme giving FCC broad authority to regulate indecency in television broadcasts. Neither the existence of the underlying statute nor ambiguous agency guidelines were deemed sufficient for due process purposes where the FCC had failed to give the networks “affirmative notice” that their broadcasts were sanctionable.
Fox TV’s analysis should guide how courts approach the student deportation cases. Here, federal agencies are penalizing regulated parties based on their violations of a governmental policy that not only was not spelled out, but likely did not even exist at the time the relevant conduct occurred. Students now caught in the policy’s crosshairs had no idea until they were apprehended (or until they received the State Department email) that their conduct could lead to serious legal trouble, including arrest, detention, and deportation from the United States. Because they lacked fair notice, they were powerless to conform their behavior to avoid these potentially life-altering consequences.
A parallel line of immigration cases further underscores the point. Recognizing “the grave nature of deportation—a drastic measure often amounting to lifelong banishment or exile,” these cases extend the “most exacting” fair notice requirements, usually reserved for those facing criminal conviction, to deportation statutes. As recently as 2018, the Court reaffirmed that such “exacting” standards apply in immigration cases when it struck down an INA provision as unconstitutionally vague. In a concurrence, Justice Gorsuch rejected “the government’s plea for a feeble standard of review,” identifying the many severe consequences that can be imposed via civil proceedings.
Fair Notice and Free Speech
One other aspect of the Court’s decision in Fox TV has potential relevance in many of the student deportation cases. In addition to due process, Fox and ABC had raised a First Amendment challenge, which called on the justices to reconsider prior case law that gave the FCC broad authority to regulate television broadcasters for indecency without running afoul of the Constitution’s free speech guarantees. The Court, however, declined to reach the First Amendment claim, instead resolving the case only “on fair notice grounds under the Due Process Clause.” But critically, even though the Court did not issue a First Amendment ruling, it explained that “[w]hen speech is involved, rigorous adherence” to the fair notice requirement is “necessary to ensure that ambiguity does not chill protected speech.”
The First Amendment looms large in the student deportation cases as well, given that several of the government’s targets appear to have engaged in political speech on matters of public concern. By penalizing these students, the government is encroaching not just on their interest in speaking freely, but also on the interests of their classmates—including U.S. citizens—who would like to hear what these students have to say, to engage with them, and to sharpen their own viewpoints through dialogue and debate. The president of Tufts University, for example, filed a declaration in support of Öztürk in which he noted the existence of multiple op-eds “on multiple sides of the issue with opinions that were shared just as strongly as the op-ed Ms. Öztürk co-authored.” Such free exchange of ideas, which is essential to the proper functioning of a university, hangs in the balance.
Still, courts tasked with adjudicating the student deportation cases need not resolve First Amendment issues directly. Instead, they could follow the Supreme Court’s lead in Fox TV and incorporate regard for free speech into their due process analysis. (Should they reach the First Amendment issues, existing Supreme Court case law is favorable to the students but dated. And, as others have noted, it is not easy to predict how the current Court would resolve the First Amendment claims of visa holders facing deportation.)
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The federal government has long asserted broad authority to regulate the admission, expulsion, and administrative detention of non–U.S. citizens. Even so, the speed and vigor with which the Trump administration has pursued international students in recent weeks is breathtaking, marking a radical departure from prior practice. It is imperative that our court system absorb some of the shockwaves the administration’s actions are sending by ensuring that students like Öztürk, who were caught completely off guard by the government’s new approach, receive the process to which they are due.